Ex parte Midsouth Paving, Inc., and Christopher Nivert PETITION FOR WRIT OF MANDAMUS: CIVIL

Rel: May 19, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
_________________________
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_________________________
Ex parte Midsouth Paving, Inc., and Christopher Nivert
PETITION FOR WRIT OF MANDAMUS
(In re: Yvonne Mason
v.
Midsouth Paving, Inc., and Christopher Nivert)
(Tallapoosa Circuit Court, CV-20-900093)
STEWART, Justice.
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Midsouth Paving, Inc. ("Midsouth"), and Christopher Nivert have
petitioned this Court for a writ of mandamus directing the Tallapoosa
Circuit Court ("the trial court") to enter a summary judgment in their
favor in an action commenced against them by Yvonne Mason. For the
reasons explained below, Mason's claims against Midsouth and Nivert
are barred by § 25-5-11, § 25-5-52, and § 25-5-53, Ala. Code 1975, of the
Alabama Workers' Compensation Act ("the Act"), § 25-5-1 et seq., Ala.
Code 1975. Accordingly, we grant the petition and direct the trial court
to enter a summary judgment in favor of Midsouth and Nivert.
Facts and Procedural History
PeopleReady, Inc., is a temporary-employment agency that
recruits, hires, and supplies temporary employees for Midsouth, a road-
paving contractor, through a contractual agreement ("the labor-supply
agreement"). 1 In June 2020, Mason applied with PeopleReady to work as
a flagger. On July 2, 2020, Mason attended training provided by
Midsouth, and, shortly thereafter, she began accepting assignments as a
flagger at Midsouth job sites. During her employment with PeopleReady,
1Thelabor-supply agreement was entered into between Midsouth's
parent company, CRH Americas, Inc., f/k/a Oldcastle, Inc., and
PeopleReady's parent company, TrueBlue, Inc.
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Mason worked as a flagger only at Midsouth job sites. Mason would
receive a daily text message from PeopleReady with a list of available
flagging jobs, and Mason had the option to accept or reject the jobs. If
Mason accepted a job, she would go to the PeopleReady office where she
would receive a "ticket" to take to the Midsouth job site. PeopleReady
initially provided Mason with a hard hat, sunblock, water, and a vest
with "Midsouth" printed on it, and Mason kept those items in her
automobile. At the job site, Midsouth employees directed and supervised
Mason's job duties. Mason's flagging duties generally included holding a
sign that said either "Stop" or "Slow" to help with redirecting traffic led
by a pilot vehicle during road-paving jobs. At the end of each shift, a
Midsouth supervisor would verify the hours Mason worked on her ticket,
and Mason would return the ticket to the PeopleReady office.
On August 13, 2020, Mason was working at a Midsouth job site
when Nivert unintentionally drove his pilot vehicle into Mason while he
was making a three-point turn. Mason's leg was severely injured, and she
received multiple surgeries and remained in a hospital and then a
rehabilitation facility for over a month. PeopleReady began paying
workers' compensation benefits to Mason after the accident and also paid
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for her continued medical care. Pursuant to the labor-supply agreement,
Midsouth was an insured alternate employer under PeopleReady's
workers' compensation insurance policy.
On November 2, 2020, Mason commenced an action against
Midsouth and Nivert in the trial court, asserting claims of negligence;
wantonness; negligent hiring, training, and supervision; and negligence
per se. Midsouth answered the complaint and raised numerous
affirmative defenses, including immunity under § 25-5-52 and § 25-5-53
of the Act ("the exclusive-remedy provisions"). Nivert filed a separate
answer and raised, among other defenses, the exclusive-remedy
provisions and asserted that Mason's claims did not meet the
requirements of § 25-5-11 of the Act, which, generally, requires willful
conduct to support a civil claim against a co-employee.
Midsouth and Nivert jointly moved for a summary judgment,
asserting that Mason had been a "special employee" of Midsouth's, that
Mason had not alleged willful conduct on the part of Nivert, and that,
therefore, the exclusive-remedy provisions and § 25-5-11 barred her
claims against Midsouth and Nivert. Midsouth and Nivert supported
their motion with, among other evidence, deposition testimony from
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various employees of Midsouth and PeopleReady and other documents
relating to Mason's employment relationship with Midsouth and
PeopleReady, including a document that Mason had signed entitled
"Employment Terms and Acknowledgements" ("the employment
agreement"), which contained the following relevant provision:
"16. I understand that my employer provides temporary
associates for its customers to work at the customer's job site.
While working at the customer's job site, I agree and consent
that the customer is my special employer ('Special Employer')
and that the customer directs, controls and supervises my
work. Workers' Compensation shall be my sole remedy for on
the job injuries. If I am ever injured in the course of my work
I agree that I will elect, and solely rely upon [PeopleReady's]
Workers' Compensation coverage for any recovery for such
injuries, and waive any recovery whether civil or through
workers' compensation, from any Special Employer. …"
Midsouth also submitted evidence indicating that Mason's job duties
while on Midsouth assignments were directed, controlled, and supervised
exclusively by Midsouth employees. PeopleReady paid Mason for the
hours she worked at Midsouth assignments based on the hours verified
on the ticket filled out by a Midsouth supervisor. However, PeopleReady
submitted an invoice to Midsouth, and Midsouth paid PeopleReady
Mason's hourly rate of $14.35 plus a 51% additional charge. That
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additional charge was used by PeopleReady to pay for, among other
expenses, workers' compensation insurance.
Mason filed a response in opposition to the summary-judgment
motion in which she argued that genuine issues of material fact existed,
thus precluding the entry of a summary judgment. Mason specifically
asserted that she was an independent contractor, not a "special
employee," of Midsouth. Mason supported her response with, among
other evidence, the labor-supply agreement, which states, in relevant
part:
"7. INDEPENDENT CONTRACTOR
"Supplier [i.e., PeopleReady] enters into this Agreement as an
independent company. Supplier shall not in any way
represent that it is an agent, employer, employee, partner, or
legal representative of Customer [i.e., Midsouth] or any
Customer Affiliate. As an independent contractor, Supplier is
not authorized to make any contract, agreement, warranty, or
representation on behalf of Customer or any of its Affiliates
without Customer's express written prior approval. Supplier
is solely responsible for the recruiting, screening,
interviewing, selecting, testing, and hiring of all TAs
[temporary associates]. TA [i.e., Mason] shall be considered
solely an employee of Supplier and not employees or agents of
Customer or any Customer Affiliate. Customer and its
Affiliates will not treat TAs as Customer employees or
Affiliate employees for purposes of worker's compensation
insurance, federal or state income tax withholding, FICA
withholding, or any other taxation purpose. ..."
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Mason also submitted testimony indicating that she believed that
she had been an employee of PeopleReady, that she had not intended to
be a special employee of Midsouth, and that she believed that she had
worked as an independent contractor for Midsouth. Mason also presented
testimony indicating that she had intended to work for only PeopleReady
because she had preferred having the ability to accept only the
assignments she wanted and had not wanted to be constrained by
another employer.
On August 10, 2022, the trial court entered an order denying
Midsouth and Nivert's summary-judgment motion. Midsouth and Nivert
petitioned this Court for a writ of mandamus.
Standard of Review
" 'The writ of mandamus is a drastic and extraordinary
writ, to be "issued only when there is: 1) a clear legal right in
the petitioner to the order sought; 2) an imperative duty upon
the respondent to perform, accompanied by a refusal to do so;
3) the lack of another adequate remedy; and 4) properly
invoked jurisdiction of the court." Ex parte United Serv.
Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993); see also Ex
parte Ziglar, 669 So. 2d 133, 134 (Ala. 1995).' Ex parte Carter,
… 807 So. 2d 534[,] 536 [(Ala. 2001)]."
Ex parte McWilliams, 812 So. 2d 318, 321 (Ala. 2001). The "denial of a
summary-judgment motion based on a claim of immunity under the
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exclusive-remedy provisions of the Workers' Compensation Act … is
reviewable by a petition for a writ of mandamus." Ex parte Tenax Corp.,
228 So. 3d 387, 391 (Ala. 2017)(citing Ex parte Salvation Army, 72 So. 3d
1224, 1228 (Ala. Civ. App. 2011)). In conducting our de novo review of
whether a summary judgment is due to be granted on the basis of the
applicability of the immunity afforded by the exclusive-remedy
provisions of the Act, this Court considers whether the defendant
established a prima facie showing as to each element of the defense
raising the exclusive-remedy provisions and, if so, whether the plaintiff
presented substantial evidence to overcome the defendant's prima face
showing. Gaut v. Medrano, 630 So. 2d 362, 364 (Ala. 1993).
Discussion
Midsouth and Nivert argue that they are entitled to a summary
judgment because, they assert, Mason was a special employee of
Midsouth's and, as a result, was barred from asserting claims against
Midsouth and Nivert under the exclusive-remedy provisions of the Act.
They further assert that Mason did not allege willful conduct sufficient
to bring a claim against Nivert under § 25-5-11 of the Act. Section 25-5-
52 provides, in part:
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"Except as provided in [the Act], no employee of any
employer subject to [the Act] ... shall have a right to any other
method, form, or amount of compensation or damages for an
injury or death occasioned by an accident or occupational
disease proximately resulting from and while engaged in the
actual performance of the duties of his or her employment and
from a cause originating in such employment or
determination thereof."
Section 25-5-53 provides, in part:
"The rights and remedies granted in [the Act] to an
employee shall exclude all other rights and remedies of the
employee, his or her personal representative, parent,
dependent, or next of kin, at common law, by statute, or
otherwise on account of injury, loss of services, or death.
Except as provided in [the Act], no employer shall be held
civilly liable for personal injury to or death of the employer's
employee, for purposes of [the Act], whose injury or death is
due to an accident or to an occupational disease while engaged
in the service or business of the employer, the cause of which
accident or occupational disease originates in the
employment. In addition, immunity from civil liability for all
causes of action except those based upon willful conduct shall
also extend ... to an officer, director, agent, or employee of the
same employer ...."
In addition, § 25-5-11 allows an injured employee to bring a cause
of action against, among other third parties, a co-employee whose conduct
was willful and contributed to the employee's injury, but it does not affect
the immunity afforded the designated persons in § 25-5-53. See Padgett
v. Neptune Water Meter Co., 585 So. 2d 900 (Ala. 1991)).
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The exclusive-remedy provisions of the Act also provide immunity
to any employer characterized as a "special employer" of an injured
employee that satisfies the following three-pronged test adopted in Terry
v. Read Steel Products, 430 So. 2d 862 (Ala. 1983):
" ' " When a general employer lends an employee to a
special employer, the special employer becomes liable for
workmen's compensation [and thus immune from liability for
tort actions brought by the employee] only if
" ' " ( a) the employee has made a contract of
hire, express or implied, with the special employer;
" ' " (b) the work being done is essentially that
of the special employer; and
" ' " (c) the special employer has the right to
control the details of the work.
" ' " When all three of the above conditions are satisfied
in relation to both employers, both employers are liable for
workmen's compensation." ' "
Gaut, 630 So. 2d at 364 (quoting Terry, 430 So. 2d at 865, quoting in turn
1C A. Larson, The Law of Workmen's Compensation § 48 (1980)).
There is no dispute regarding the second and third prongs
identified in Terry; Mason was performing the work of Midsouth, and
Midsouth controlled the details of her work. The issue is whether Mason
expressly or impliedly consented to a contract of hire with Midsouth.
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Mason argues, as she did in her response to Midsouth and Nivert's
summary-judgment motion, that she did not expressly or impliedly
consent to a contract of hire with Midsouth. Midsouth argues that Mason
expressly consented to a contract of hire with Midsouth by signing the
employment agreement with PeopleReady that specifically stated that
Mason would be a special employee of PeopleReady's customers. The
employment agreement between PeopleReady and Mason does not evince
an express contract of hire between Midsouth and Mason; however, as
discussed below, that agreement supports the contention that Mason
impliedly consented to a contract of hire with Midsouth.
In determining whether a worker impliedly consented to a contract
of hire with a special employer, this Court has considered several factors,
including: 1) "whether the general employer is, in reality, acting as a
'labor broker' or a temporary employment agency for the special
employer," G.UB.MK Constructors v. Garner, 44 So. 3d 479, 488 (Ala.
2010); 2) "whether the special employer provided the workers'
compensation insurance," id., and 3) " ' "whether the employment with the
borrowing employer was of such duration that the employee could be
reasonably presumed to have evaluated and acquiesced in the risks of his
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employment," ' " id. (quoting Gaut, 630 So. 2d at 367, quoting in turn
Vanterpool v. Hess Oil V.I. Corp., 766 F.2d 117, 122 (3d Cir. 1985)).
Midsouth asserts that it presented evidence affirmatively
supporting the foregoing factors and, therefore, demonstrated that
Mason had impliedly consented to a contract of hire with Midsouth. In
particular, Midsouth presented evidence demonstrating that
PeopleReady is a temporary-employment agency that provides
temporary employees to Midsouth; that Midsouth paid PeopleReady an
amount in excess of Mason's hourly rate to cover, among other expenses,
premiums for workers' compensation insurance; and that Mason worked
exclusively at Midsouth job sites, used Midsouth's equipment, and
submitted to Midsouth's control.
PeopleReady is indisputably a temporary-employment agency, and
it supplies temporary employees to Midsouth. In cases in which a
temporary-employment agency places an employee with a special
employer, " ' "the employee applies to the general employer for the specific
purpose of temporary placement with special employers and thus
necessarily agrees to a contract of hire with the special employer." ' " Ex
parte Tenax Corp., 228 So. 3d at 392 (quoting Garner, 44 So. 3d at 488,
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quoting in turn Gaut, 630 So. 2d at 366). See also Hicks v. Alabama Power
Co., 623 So. 2d 1050, 1054-55 (Ala. 1993)(discussing various cases
involving employment agencies2 and recognizing that the employees in
those cases did not contact the employment agencies "for the purpose of
entering into employment with those companies to do the work of those
companies; rather, the plaintiffs intended for the general employers to
'market' them to secure employment with another, special employer" and
that, "[o]nce those plaintiffs were presented by the employment services
to the special employers, those plaintiffs then entered into a contract of
hire with those special employers").
Midsouth presented evidence demonstrating that PeopleReady
served as a temporary-employment agency that supplied temporary
workers to various customers, including flaggers for Midsouth, and that
Mason applied for employment with PeopleReady for the purpose of
working as a flagger. Accordingly, Midsouth demonstrated that
PeopleReady acted as a temporary-employment agency for Midsouth. See
2Terry v. Read Steel Prods., 430 So. 2d 862, 865 (Ala. 1983), Marlow
v. Mid-South Tool Co., 535 So. 2d 120 (Ala. 1988), Bechtel v. Crown Cent.
Petroleum Corp., 495 So. 2d 1052 (Ala. 1986), and Pettaway v. Mobile
Point Mfg. Co., 467 So. 2d 228 (Ala. 1985).
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Ex parte Tenax Corp., 228 So. 3d at 392 (quoting Garner, 44 So. 3d at
488).
The second consideration -- whether the special employer pays
workers' compensation benefits, also weighs in favor of finding an implied
contract of hire. Midsouth presented evidence demonstrating that
PeopleReady physically paid Mason's wages but that, in return,
Midsouth paid PeopleReady Mason's hourly wages, plus a 51% additional
charge that was used by PeopleReady to pay for, among other expenses,
workers' compensation insurance. Moreover, the labor-supply agreement
required Midsouth to be an insured alternate employer under
PeopleReady's workers' compensation insurance policy. As we have
previously explained, whether a special employer participates in funding
workers' compensation coverage is a "particularly significant"
consideration, because permitting a civil action against an entity
providing benefits under the Act would contravene the very purpose of
the Act. Garner, 44 So. 3d at 489. See also Ex parte Tenax Corp., 228 So.
3d at 394 (placing import on evidence indicating that the alleged special
employer paid a portion of the employee's workers' compensation
insurance premiums). Therefore, Midsouth presented evidence showing
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that it funded, at least in part, workers' compensation insurance that was
used to cover Mason.
In addressing the third consideration -- whether the employee's
employment with the alleged special employer " 'was of such duration
that the employee could be reasonably presumed to have evaluated and
acquiesced in the risks of his employment,' " this Court has considered
the frequency and exclusivity of the employee's work with the alleged
special employer and the employee's understanding of the scope of the
special employer's authority. Gaut, 630 So. 2d at 367 (noting that the
employee had reported to the alleged special employer's workplace each
workday, that he was aware that it was his ordinary workplace, and that
he was aware that he was required to follow instructions of the special
employer's supervisors). This Court distinguished cases in which an
employee is briefly or randomly "lent to another employer," noting that,
in those cases, the employee would have "little or no reason to actually
consent to a contract of hire with the borrowing employer." Gaut, 630 So.
2d at 367. This Court in Gaut also discussed Pettaway v. Mobile Paint
Manufacturing Co., 467 So. 2d 228, 230 (Ala. 1985), and highlighted the
decision of the employee in that case to accept the employment agency's
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offer of a work assignment as indicative of an implied contract of hire.
630 So. 2d at 366. Likewise, here, Midsouth presented evidence
indicating that Mason had applied to PeopleReady to work as a flagger,
that Mason had accepted only Midsouth job assignments during her
employment with PeopleReady, and that Midsouth supervisors
exclusively directed her job duties and verified her work hours. Moreover,
as mentioned above, Mason signed an employment agreement with
PeopleReady that specifically designated her as a "special employee" of
the customer, i.e., Midsouth, and required her to acknowledge her
understanding that Midsouth would direct, control, and supervise her
work. Accordingly, Midsouth presented evidence demonstrating that
Mason's employment with Midsouth " 'was of such duration that [she]
could be reasonably presumed to have evaluated and acquiesced in the
risks of [her] employment.' " Gaut, 630 So. 2d at 367 (quoting Vanterpool,
766 F. 2d at 122).
Midsouth presented evidence demonstrating that PeopleReady
acted as a temporary-employment agency for Midsouth, that Midsouth
paid at least a portion of the premiums for workers' compensation
insurance for PeopleReady's employees working for Midsouth, and that
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Mason " 'could be reasonably presumed to have evaluated and acquiesced
in the risks of [her] employment' " from the duration of her employment
with Midsouth. Id. As a result, Midsouth demonstrated that Mason
impliedly consented to a contract of hire with Midsouth, and, as
mentioned above, there is no dispute regarding the other two factors
relevant to the determination of whether Midsouth was Mason's special
employer -- Mason was performing the work of Midsouth, and Midsouth
had the right to control the details of her work. See Terry, 430 So. 2d at
865. Accordingly, Midsouth made a prima facie showing of Mason's status
as a special employee of Midsouth and, thus, the applicability of the
immunity afforded by the exclusive-remedy provisions of the Act. As a
result, the burden shifted to Mason to present substantial evidence
demonstrating the existence of a genuine issue of material fact regarding
her employment status with Midsouth. Gaut, 630 So. 2d at 364.
Mason asserts that a factual dispute exists as to whether there
existed a mutual contract of hire with Midsouth and, ultimately, whether
she was a special employee of Midsouth's. First, Mason asserts that
Midsouth was precluded from entering into a contract of hire with her
because of the provision in the labor-supply agreement that states that
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temporary associates placed with Midsouth "shall be considered solely an
employee of [PeopleReady] and not employees or agents of [Midsouth]."
Mason argues that that "agreement constitutes strong and compelling
evidence" that Midsouth was not Mason's employer in any capacity and
that it foreclosed the possibility of Midsouth's offering a contract of hire
to Mason. Mason relies on Hicks v. Alabama Power Co., in which this
Court considered a similar provision in a contract between a general
employer and an alleged special employer prohibiting an employee of the
general employer from being considered an employee of the special
employer. 623 So. 2d at 1054-55 (Ala. 1993). Hicks is distinguishable from
the present case because, in Hicks, the general employer was not an
employment agency; the employee was placed by a union for employment
with the general employer, who provided contracting services to another
company. Additionally, as mentioned above, the Court in Hicks noted the
distinction between the factual scenario in that case and previous cases
involving temporary-employment agencies. Moreover, this Court more
recently considered an argument regarding a similar provision in a
contract between a maintenance contractor (the general employer) and a
utility company (the special employer) in Garner. The employee in that
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case argued that he was not a special employee, and he relied on a
provision in a contract between the companies stating that the
maintenance contractor's employees that provided services to the utility
company would continue to be considered the maintenance contractor's
employees. Garner, 44 So. 3d at 490. This Court noted that the employee
"was not a party to the contract and there was no evidence indicating that
he ever saw it or was aware of th[at] provision." Id. This Court explained
that, although " ' "employers certainly may contract as between
themselves to define their business relationships and accomplish their
business objectives, an agreement between the employers may not be
determinative of the issue of special employment." ' " Garner, 44 So. 3d at
490 (quoting Hamberg v. Sandia Corp., 142 N.M. 72, 82, 162 P.3d 909,
919 (Ct. App. 2007), quoting in turn Thompson v. Grumman Aerospace
Corp., 78 N.Y.2d 553, 559-60, 585 N.E.2d 355, 358-59, 578 N.Y.S.2d 106,
109 (1991)). The situation in Garner is much more analogous to the
present case than is the situation in Hicks.
Mason also argues that Midsouth did not provide workers'
compensation benefits, which, she asserts, presents a factual dispute as
to the existence of an implied contract of hire. Mason relies on the
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remainder of the provision in the labor-supply agreement considering
temporary associates to be solely employees of PeopleReady that states
that Midsouth would not treat the temporary associates as its own
"employees for purposes of worker's compensation insurance, federal or
state income tax withholding, FICA withholding, or any other taxation
purpose." Regardless of the terms of the labor-supply agreement, the
evidence presented indicated that Midsouth paid an amount in excess of
the temporary associates' hourly wages for the purpose of covering
additional expenses, including workers' compensation insurance, and
Midsouth was required to be an insured alternate employer under
PeopleReady's workers' compensation insurance policy. Accordingly, the
labor-supply agreement between PeopleReady and Midsouth is not
substantial evidence demonstrating that Mason did not impliedly
consent to a contract of hire with Midsouth.
Mason also points to evidence that she presented indicating that,
despite signing the employment agreement with PeopleReady addressing
her status as a special employee with PeopleReady's customers, she was
not aware that she would be considered a special employee, she did not
know what a special employer was and no one explained that term to her,
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and she did not realize that she was waiving her right to assert civil
claims for injuries against PeopleReady's customers. However, this Court
has explained that "when a competent adult, having the ability to read
and understand an instrument, signs a contract, he will be held to be on
notice of all the provisions contained in that contract and will be bound
thereby." Power Equip. Co. v. First Alabama Bank, 585 So. 2d 1291, 1296
(Ala. 1991) (citing Massey v. Ingram, 567 So. 2d 1272 (Ala. 1990), and
Norman v. Amoco Oil Co., 558 So. 2d 903 (Ala. 1990)). Therefore, Mason's
ignorance of the terms of her employment agreement with PeopleReady
does not serve as substantial evidence that she did not have an implied
contract of hire with Midsouth or that she was not a special employee of
Midsouth's.
Mason further points to her testimony that she intended to be an
employee of only PeopleReady and that she never intended to be
employed by Midsouth. Mason contends that she sought employment
with PeopleReady because she wanted the flexibility of accepting or
rejecting jobs based on her preferred schedule. It is undisputed, however,
that Mason applied to PeopleReady for the purpose of working as a
flagger. PeopleReady does not have employees who perform flagging
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duties for it; instead, PeopleReady supplies employees to perform
flagging duties for other companies, particularly Midsouth. See, e.g.,
Hicks, 623 So. 2d at 1054-55 (recognizing that the employees in Terry;
Marlow v. Mid-South Tool Co., 535 So. 2d 120 (Ala. 1988); Bechtel v.
Crown Central Petroleum Corp., 495 So. 2d 1052 (Ala. 1986); and
Pettaway did not seek employment with the temporary-employment
agencies to perform the work of those agencies but, instead, for the
purpose of performing the special employers' work). Evidence of Mason's
intent with respect to her employment is an important consideration. See
Garner, 44 So. 3d at 488 (stating that "the focus is on what the employee
intended in providing services for the alleged special employer").
However, the evidence Mason presented regarding her intent is not
substantial evidence sufficient to overcome the evidence demonstrating
that she was a special employee of Midsouth's.
Perhaps the most instructive case is Pettaway, the facts of which
are largely indistinguishable from Mason's factual scenario. In that case,
Pettaway was employed by Manpower, a temporary-employment agency.
After three months' employment with Manpower, during which he had
accepted temporary job assignments with various Manpower customers,
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Pettaway accepted an assignment with Mobile Paint Manufacturing
Company. Pettaway stopped by Manpower's office before and after his
shifts at Mobile Paint's job site to obtain and return a timesheet. While
working for Mobile Paint, Pettaway was supervised and directed by
Mobile Paint employees. Pettaway received paychecks from Manpower,
but Mobile Paint paid to Manpower Pettaway's wages and an additional
charge that covered, among other expenses, premiums for workers'
compensation insurance. After working for Mobile Paint for
approximately three weeks, Pettaway was injured, and he commenced an
action against Mobile Paint. The trial court in that case entered a
summary judgment in favor of Mobile Paint, finding that it was
Pettaway's special employer and, thus, that his claims were barred by
the Act. Pettaway appealed, and this Court affirmed the summary
judgment, determining that, under the facts, Mobile Paint was
Pettaway's special employer. 467 So. 2d at 228-30. Likewise, here, Mason
accepted job assignments with Midsouth, retrieved a timesheet from
PeopleReady before each job, had it filled out by a Midsouth supervisor,
and returned it to PeopleReady at the end of each shift; Mason's pay and
workers' compensation insurance from PeopleReady was subsidized by
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Midsouth; and Mason's specific job duties were assigned and controlled
by Midsouth.
Applying this Court's precedent to the evidence presented,
Midsouth demonstrated that Mason was a special employee of
Midsouth's, and Mason failed to present substantial evidence to refute
that she was a special employee of Midsouth's. In addition, Mason did not
present any evidence or argument indicating that Nivert acted willfully
in causing her injuries so as to permit a claim against him under § 25-5-
11. Therefore, the immunity afforded in the exclusive-remedy provisions
of the Act bars Mason's claims against Midsouth and Nivert. Accordingly,
Midsouth and Nivert have demonstrated a clear legal right to a summary
judgment in their favor.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Mitchell, and
Cook, JJ., concur.
Sellers, J., concurs in the result.
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